Elmore J. Williams, Petitioner - Appellant,v.burl Cain, Respondent - Appellee, 217 F.3d 303 (5th Cir. 2000)

Appeal from the United States District Court For the Eastern District of Louisiana

Before WIENER and STEWART, Circuit Judge and ROSENTHAL, District Judge.^* 

ROSENTHAL, District Judge:

Elmore Williams was convicted of second degree murder in Louisiana state court in 1989. He received a life sentence, without the possibility of parole. His direct appeals concluded without success in 1991. He appeals from the district court's dismissal of his petition under 28 U.S.C. § 2254 as time-barred.

Louisiana procedure requires a prisoner seeking post-conviction relief to make an initial application to the trial court. See La. Code Crim. Proc. Ann. art. 930.6A. The law in effect during the relevant time required a prisoner to file an application for post-conviction relief within three years after the judgment of conviction and sentence become final. See La. Code Crim. Proc. Ann. art. 930.8A. (This period has since been reduced to two years). Williams filed a timely application for post-conviction relief before the trial court. The trial court denied Williams's application without a hearing. Under Louisiana law, Williams could not appeal from the trial court's denial of his application for post-conviction relief. Louisiana law requires an unsuccessful applicant to seek review through an application for a supervisory writ. Williams filed his application for a supervisory writ before the intermediate state appellate court. That court ordered the trial court to conduct an evidentiary hearing on Williams's ineffective assistance of counsel claim. The trial court held the hearing and again denied relief. On March 10, 1994, the appellate court denied Williams's application for a supervisory writ.

Under Louisiana Supreme Court Rule X, § 5(a), Williams had thirty days to file his application for a supervisory writ to the Louisiana Supreme Court. That rule provides as follows:

An application seeking to review a judgment of the court of appeal either after an appeal to that court, or after that court has granted relief on an application for supervisory writs (but not when the court has merely granted an application for purposes of further consideration), or after a denial of an application, shall be made within thirty days of the mailing of the notice of the original judgment of the court of appeal; however, if a timely application for rehearing has been filed in the court of appeal in those instances where a rehearing is allowed, the application shall be made within thirty days of the mailing of the notice of denial of rehearing or the judgment on rehearing. No extension of time therefor will be granted.

Williams did not file his application with the Louisiana Supreme Court until May 1995, almost fourteen months after the appellate court denied his application for a supervisory writ. The Supreme Court did not request briefs from the State and no motions or briefs are in the record. Almost two years later, in April 1997, the Louisiana Supreme Court rejected Williams's application with one word: "DENIED." The Court did not state whether it was rejecting the application as untimely filed or whether it had considered the application and rejected it on a substantive ground.

Williams filed this federal petition under section 2254 in July 1997. Williams did not file this petition within the one-year grace period allowed by the Antiterrorism and Effective Death Penalty Act of 1996, § 101, 28 U.S.C. § 2244(d) (1) ("AEDPA"), which expired on April 24, 1997.¹  Williams contends that the tolling provision of section 2244(d) (2)applies, suspending the one-year filing period until the Louisiana Supreme Court denied his application for a supervisory writ. If Williams is correct, his federal petition is timely. Absent tolling, the petition is time-barred.

The district court held that Williams's application for a supervisory writ did not constitute a "properly filed application for State post-conviction . . . review" under 28 U.S.C. § 2244(d) (2) because Williams did not comply with the thirty-day filing requirement of Louisiana Supreme Court Rule X, § 5(a). This court grantedWilliams's request for a certificate of appealability ("COA") on the issue of whether, in light of Villegas v. Johnson, 184 F.3d 467 (5th Cir. 1999), the Louisiana Supreme Court rule "sets forth the type of procedural filing requirement that would render a state application for post-conviction relief dismissed on that basis improperly filed for purposes of § 2244(d)."

Williams filed a brief that addressed the merits of his petition, but failed to address the tolling issue. Respondent's brief is limited to the issue of whether Williams's application to the Louisiana Supreme Court, filed long after the time allowed by that Court's rules, was a "properly filed" application under section 2244(d) (2) so as to toll limitations.

Williams clearly, and successfully, raised the tolling issue before this court in his application for a certificate of appealability. His failure to reassert the same issue in the post-COA briefs does not amount to a waiver of that issue.

In Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993), this court considered a pro se appellant's request for the adoption of legal and factual arguments previously presented in his filed objections to a magistrate judge's report and in various state court pleadings. The Fifth Circuit held that appellant had abandoned those arguments by failing to repeat them in the body of his appellate brief. The court cited Rule 28(a) (4) of the Federal Rules of Appellate Procedure, which required an appellant to state the reasons that entitled the appellant to the requested relief "with citation to the authorities, statutes and parts of the record relied on."²  The court stated: "Although we liberally construe the briefs of pro se appellants, we also require that arguments must be briefed to be preserved." Yohey, 985 F.2d at 224-225. The court also noted that the incorporation of arguments from other pleadings would lengthen a brief already at the fifty-page limit. The court therefore limited its consideration to the issues presented and argued in the brief.

In this case, Williams timely raised and briefed the tolling issue in his request for a COA. In the order granting the COA, the court stated that if a prisoner makes a credible showing that the district court erred in dismissing a habeas corpus application on a procedural basis, the appellate court would then consider whether the prisoner had made a substantial showing of the denial of a constitutional right on the underlying claims. The order concluded by stating that Williams had "made a credible showing that the district court may have erred in dismissing his application as time barred." The order was arguably misleading to a pro se litigant. In the absence of explicit direction to rebrief the issue of the time bar, Williams proceeded to brief the merits. Under these circumstances, it is inappropriate to deem the tolling issue waived by Williams's failure again to brief that issue.

Section 2244(d) (2) tolls the limitation provision for filing a section 2254 petition during the pendency of certain state court proceedings:

The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d) (2). The issue in this case is when Williams ceased to have a "properly filed application for State post-conviction . . . review . . . pending." Williams argues that he had a properlyfiled application pending until the Louisiana Supreme Court denied his application for a supervisory writ. The respondent contends that Williams ceased to have a properly filed application pending when he failed to comply with the time limit of Louisiana Supreme Court Rule X, § 5(a).³ 

This question requires an examination of the meaning of the phrases "properly filed" and "pending" in section 2244(d) (2).

A. The Meaning of "Properly Filed"

This court has addressed the meaning of "properly filed" in Villegas v. Johnson, 184 F.3d 467 (5th Cir. 1999), and Smith v. Ward, 209 F.3d 383 (5th Cir. 2000). This court had not issued either opinion when the district court ruled. In Villegas, the court held that a Texas prisoner's state habeas application was "properly filed" within the meaning of section 2244(d) (2), despite the fact that the state court had dismissed the application under a Texas statute that precluded consideration of a successive habeas application unless the application satisfied one of several specified exceptions. This court defined a "properly filed" state application as one that "conforms with a state's applicable procedural filing requirements," Villegas, 184 F.3d at 470, and defined "procedural filing requirements" as "those prerequisites that must be satisfied before a state court will allow a petition to be filed and accorded some level of judicial review." Id. at 470 n.2.

This court observed that under the Texas statute, although the state court would not "automatically consider the merits of claims raised in a successive petition, [the state habeas court would] accept the petition for filing and review the application to determine whether the statutory exceptions [we]re met." Id. at 472 n. 4. If the review showed that none of the exceptions applied, the state court would then dismiss the petition. However, because the statute did not prohibit the filing of a successive petition, but merely limited the availability of relief, the statute did not impose a "procedural filing requirement" that would make an application improperly filed for the purpose of section 2244(d) (2). See id. at 472.

In Smith v. Ward, 209 F.3d 383 (5th Cir. 2000), the court applied Villegas to a prisoner's efforts to obtain post-conviction relief in the Louisiana courts. The Louisiana state court had dismissed the prisoner's application for post-conviction relief as time-barred because the prisoner did not file in the trial court within three years from the date the judgment of conviction and sentence became final, as required by La. Code Crim. Proc. Ann. art. 930.8A. The Fifth Circuit held that the Louisiana state court's dismissal of the application on the ground that it failed to meet this time limitation did not make the application "improperly filed" for section 2244(d) (2) purposes. As with the Texas successive writ statute, Article 930.8A included a number of exceptions allowing a court to consider an application for post-conviction relief even if filed after the presumptive time limit. Under the article, a Louisiana state court could consider the merits of a prisoner's untimely application if (1) " [t]he application allege [d], and the prisoner prove [d] or the state admit [ted], that the underlying facts were not known to the petitioner or his attorney," or (2) the application raised a claim "based on a final ruling of an appellate court establishing atheretofore unknown interpretation of constitutional law and petitioner establishe [d] that this interpretation [was] retroactively applicable to his case, and the petition [was] filed within one year of the finality of such ruling." La. Code Crim. Proc. Ann. art. 930.8A.

This court reasoned:

On its face, article 930.8A is arguably a time-based procedural filing requirement of the sort which, under Villegas, would render an application dismissed on that basis as having been not "properly filed." On the other hand, article 930.8A, like the Texas successive writ statute at issue in Villegas, does not impose an absolute bar to filing; instead, it limits the state court's ability to grant relief.

Under article 930.8A, Louisiana courts will accept a prisoner's application for filing and review it to determine whether any of the statutory exceptions to untimely filing are applicable. If the untimely application does not fit within an exception, the state court will dismiss it.

Because the procedure established by article 930.8A is virtually identical to that under Tex. Code Crim. P. art. 11.07, § 4, we conclude that, consistent with Villegas, Smith's state application, although ultimately determined by the state court to be time-barred, nevertheless was "properly filed" within the meaning of § 2244(d) (2). Accordingly, the one-year period for seeking federal habeas relief was tolled during the pendency of that state application, making timely the federal application filed in January 1998.

Smith, 209 F.3d at 384-385 (citations omitted).

Villegas and Smith emphasized that the phrase "properly filed" required compliance with "procedural filing requirements," such as "rules governing notice and the time and place of filing [as well as] requirement [s] that the petitioner obtain judicial authorization for the filing," Villegas, 184 F.3d at 470 n. 2, but did not include compliance with more complex state procedural doctrines, such as those relating to successive petitions. See id. at 470 (stating a reluctance to go beyond the plain meaning of "properly filed" and emphasizing the interests of comity and exhaustion served by a narrow construction of section 2244(d) (2)).

Although the circuits disagree on aspects of the application of section 2244(d) (2),⁴  courts have consistently held that an application is not "properly filed" if it fails to meet a filing deadline clearly established in state law. See Hoggro, 150 F.3d at 116, n.4; Lovasz, 134 F.3d at 148-49; Webster v. Moore, 199 F.3d 1256, 1258-59 (11th Cir. 2000), petition for cert. filed (Mar. 20, 2000) (No. 99-8819); United States ex rel. Morgan v. Gilmore, 26 F. Supp. 2d 1035, 1038 (N.D. Ill. 1998). These courts have held that the plain language of section 2244(d) (2) requires aproperly-filed state application to meet clear time limitations. These courts also note that respect for state filing deadlines is consistent with the concern for comity that animates many provisions of the AEDPA, including the requirement that a prisoner exhaust available state remedies before pursuing federal habeas relief, 28 U.S.C. § 2254(b), and the respect afforded state adjudications of constitutional claims on federal habeas review, 28 U.S.C.§ 2254(d)-(e). See, e.g., Webster, 199 F.3d at 1258-59.

A straightforward application of the above cases to the thirty-day time limit established by Louisiana Supreme Court Rule X, § 5(a) supports the conclusion that Williams's "application" for post-conviction relief in the Louisiana courts ceased to be "properly filed" for the purpose of section 2244 (d) (2) when he failed to file his application for a supervisory writ with the Louisiana Supreme Court within the time allowed by Rule X, § 5(a). Rule X, § 5(a) is a procedural requirement governing the time of filing. The rule sets out no specific exceptions to, or exclusions from, this requirement. Indeed, the rule forbids any extension of the thirty-day limit. In these important ways, Rule X, § 5(a) differs from the statutes at issue in Villegas and Smith.

The primary argument on the other side, noted by the district court, is the presence of an unrestricted residual discretion in the Louisiana Supreme Court to consider any request for a supervisory or remedial writ. See La. Const. Ann. Art. 5, § 5(A) ("The supreme court has general supervisory jurisdiction over all other courts."); Williams v. Cain, 66 F. Supp. 2d at 817.⁵  The district court did not examine whether the Louisiana Supreme Court's general supervisory jurisdiction was in itself sufficient under Villegas and Smith to make Williams's application "properly filed," despite its violation of the thirty-day deadline set in the Louisiana Supreme Court's rule.⁶ 

By comparison to the statutory exceptions to time limits at issue in Villegas and Smith, the general discretion in the Louisiana Supreme Court to accept a supervisory writ application functions far differently for the purpose of section 2244(d) (2). As noted, Villegas and Smith involved state post-conviction statutes that provided express exceptions to the filing deadlines they contained. This circuit held that because the statutes specifically provided grounds that, if alleged and proved, required a state habeas court to consider an otherwise untimely application, those statutes did not bar a state court's consideration of the application, but only placed limitations on such consideration. An application dismissed as untimely under those state statutes would still be a "properly filed application" that would toll limitations under AEDPA. By contrast, there is no express provision in the Louisiana Supreme Court Rule or the Louisiana post-conviction statutes that would permit a petitioner to avoid the thirty-day filing deadline. Rule X, § 5(a) expressly prohibits any extension of the thirty-day period. There is no requirement in the rule that the Louisiana Supreme Court consider an untimely application for a supervisory writ upon a petitioner's allegation and proof of certain facts defined by statute.

Under the statutes at issue in Villegas and Smith, the state court had to make a determination on issues related to the substance of the state applications to determine whether the applications fell within a clearly-defined exception to the time requirements. In this case, by contrast, the question whether a state application to the Louisiana Supreme Court for a supervisory writ is timely filed under Rule X, § 5(a) requires no examination relating to the merits. There was no question that the state application filed here was untimely under state law. The Louisiana Supreme Court did not need to make any determination related to the merits to reach this conclusion.

The Louisiana Supreme Court Rule is much more similar to the post-conviction filing deadlines at issue in Webster, Hoggro, and Morgan, which courts consistently require a petition to satisfy in order to be "properly filed," than it is to the deadlines established by the more complex state procedural statutes at issue in Villegas and Smith. Those statutes specify exceptions that might, in any case, make an otherwise untimely application "properly filed" and require an examination into whether those exceptions are present to determine whether an application is timely. No such exceptions and no such examination are contemplated by the time requirement set by the Louisiana Supreme Court Rule X, § 5(a). Compliance with that requirement is necessary for a Louisiana prisoner's "application" for post-conviction relief to remain "properly filed" under section 2244(d) (2).⁷ 

B. THE MEANING OF "PENDING"

Williams's argument for tolling also fails because his application seeking post-conviction relief in the Louisiana trial court ceased to be "pending" within the meaning of section 2244(d) (2) when he failed timely to file an application for a supervisory writ with the Louisiana Supreme Court. Some circuits have addressed the issue of when a prisoner's state application for post-conviction relief ceases to be "pending." The Ninth Circuit has held that section 2244(d) (2) tolls limitationsfor the period "during which a state prisoner is attempting, through proper use of state court procedures, to exhaust state court remedies with regard to a particular post-conviction application." Nino v. Galaza, 183 F.3d 1003, 1005 (9th Cir. 1999) (quoting Barnett v. Lemaster, 167 F.3d 1321, 1323 (10th cir. 1999)), cert. denied, ___ U.S. ___, 120 S. Ct. 1846 (2000). The Second Circuit has stated that " [a] state-court petition [for post-conviction review] is 'pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures." Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), cert. denied, ___ U.S. ___, 120 S. Ct. 1669 (2000). The Fourth Circuit holds that "the entire period of state post-conviction proceedings, from initial filing to final disposition by the highest state court (whether decision on the merits, denial of certiorari, or expiration of the period of time to seek further appellate review), is tolled from the limitations period for federal habeas petitioners . . . ." Taylor v. Lee, 186 F.3d 557, 561 (4th Cir. 1999), cert. denied, ___ U.S. ___, 120 S. Ct. 1262 (2000).

Of the other circuits courts that have considered the issue, the Third Circuit addressed facts most similar to those presented here. In Swartz v. Meyers, 204 F.3d 417 (3d Cir. 2000), the prisoner had failed timely to file a petition for allowance of appeal with the Pennsylvania Supreme Court after lower Pennsylvania courts denied him post-conviction relief. Several months after the deadline for filing with the Pennsylvania Supreme Court had passed, the prisoner filed a "Motion for Permission to File Petition for Allowance of Appeal Nunc Pro Tunc" with that court. The Pennsylvania Supreme Court later denied that motion.

In determining whether the prisoner timely filed his section 2254 petition in federal court, the Third Circuit considered when the prisoner's state application for post-conviction relief ceased to be pending for the purpose of section 2244(d) (2). The court adopted the dictionary definition of the word "pending," under which " [a]n action or suit is pending from its inception until the rendition of final judgment." Id. at 420 (quoting Black's Law Dictionary, 6th ed., p. 1134 (1990)). The court held that the prisoner's state application, properly filed with the trial court, ceased to be pending when the time expired for the prisoner to file a petition for allowance of appeal with the Pennsylvania Supreme Court under its procedural rules.

In this case, Williams failed to comply with Louisiana Supreme Court Rule X, § 5(a) by filing an application for a supervisory writ with that court within thirty days after the intermediate state appellate court denied his application for a supervisory writ from the trial court's denial of his application for post-conviction review. Rule X, § 5(a) expressly prohibits any extension of the thirty-day period. The district court correctly observed that no evidence suggested that the Louisiana Supreme Court considered Williams's untimely application for a supervisory writ on the merits.

Once Williams failed to comply with Louisiana Supreme Court Rule X, § 5(a), "further appellate review [was] unavailable under [Louisiana's] procedures." Bennett, 199 F.3d at 120.⁸  His application for postconviction relief from the Louisiana courts ceased to be pending long before the one-year grace period of the AEDPA began to run.⁹  No tolling applies. The period for filing a section 2254 petition expired on April 24, 1997. Williams's federal petition was untimely.

Williams's application for supervisory review missed the Louisiana Supreme Court filing deadline by more than fourteen months. Williams ceased to have a "properly filed application" for post-conviction relief pending in the Louisiana courts when he failed timely to apply to the Louisiana Supreme Court. Williams's federal petition is time-barred. The judgment of the district court is

AFFIRMED.